27 October 2012

Bo News is Good News™: Jurisdiction Matters

Just before midnight last night, the Xinhua News Agency issued a terse announcement (English, 中文) that a criminal investigation has been filed against former Chongqing Party Secretary Bo Xilai (a.k.a, "Mr Flamboyant") for unspecified "alleged criminal offenses." Notably, it's the Supreme People's Procuratorate that is carrying out the investigation, which indicates, first, that the main charges against Bo fall under the category (or categories) of corruption, dereliction of duty, or using official authority to infringe upon civil rights and, second, that the case is being considered a "major criminal case of national significance." (See Articles 8 & 13 of the 人民检察院刑事诉讼规则).

This categorization as a "major criminal case of national significance" may mean that the case will be tried in first instance by the Supreme People's Court (see Article 22 of the Criminal Procedure Law). If so, this would be only the second case to be tried in first instance by China's highest court since the trial of the "Gang of Four" in 1981.

Actually, technically speaking, I think Bo's would be the first case to be tried in first instance by the SPC, since the Gang of Four was tried by a "special tribunal" authorized by a 1980 decision of the National People's Congress Standing Committee. At this point, there's no indication that a Bo trial would follow that precedent.

This raises some interesting procedural issues. The first involves the right to appeal. (I'm grateful to Prof. Sam Crane for pointing me toward this line of inquiry.) China's criminal process normally involves a trial of first instance followed, if requested by either defendant or prosecution, by an appellate hearing that results in a final ruling. But if the case is tried in first instance by the SPC, there is no superior venue for appeal, so the first-instance verdict is considered final and there is no avenue for appeal.

Likewise, it appears that if Bo were sentenced to death (either with immediate execution or suspended for two years), he may not be eligible for the "final review" process normally carried out by the SPC. I'm not entirely certain about this last point, as I can't find any discussion in the law or associated regulations that deal with this (obviously rare) set of circumstances, but I suspect that the logic would be the same as for appeal.

Given all of this, I'd say there's still a small chance that Bo will be tried before the 18th Party Congress early next month. Of course, the precedents of Chen Xitong and Chen Liangyu suggest that trial will await conclusion of the congress, but the way this case is being handled by the Supreme People's Procuratorate suggests that those precedents might not be relevant here. Assuming that the central leadership has an interest in having Bo's case resolved prior to the leadership transition, then the removal of potential delays due to appeal seems to facilitate that.

From Xinhua's report, it seems as though the case is still in the investigative stage. Presumably the Central Commission for Discipline Inspection has done
much of the investigation of Bo already, and there is also likely to be
evidence carried over from the Gu and Wang trials. So, it might not be
long before the prosecution sends the case to the court, which was the stage at which, in those earlier cases, more details began to emerge.